Chief Justice Roberts and the Affordable Health Care Act

Prior to the announcement of today's monumental health care decision, the betting was that the key vote would be Kennedy and that if Kennedy swung toward upholding the act, Roberts would join him. We now know that Roberts was the key vote, and we should have suspected it from the beginning.

Roberts more than any other member of the Court has a stake in how the Court is perceived. The media and historians focus on the legacy of the Roberts Court. If the Court had struck down the Affordable Health Care Act, there was a grave danger to the Court that it would be perceived as a partisan wing of the Republican Party. The decision would have been perceived as woven from the same cloth as Bush v. Gore and Citizens United. Instead, the Supreme Court will be perceived in this decision as having acted as a court of law rather than as a naked political power organ.

Of course, law is a subcategory of politics. But it is a subcategory bound by certain authorities, customs, habits, and traditions. Policy plays a role, but partisan politics is out of bounds. Roberts understood that. It is a courageous decision on his part. He will be hated by conservatives for what he has done. And he will never be loved by liberals, nor should he be.  But I respect the fact that he ruled today in a way that will promote respect for the Court as an institution. 

Comments

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[Patrick S. O'Donnell]

I think Larry Solum just made or at least implied Michael's important point about the commerce clause at his Legal Theory blog.

[Steve Shiffrin]

Michael
Thanks for the comment. I have not read the opinion (only reports
on it), but I suspect the commerce clause limits will not be
practically important (except I wonder about congressional
commerce power to compel members of bargaining units to pay
service fees after this opinion). I do not see how the act can be
overturned as a practical matter, but there will still be plenty
to fight about.
Steve

[Michael Duff]

Counter narrative: the decision stealthily scales back decades of commerce clause jurisprudence (since it invalidated the government's reliance thereon) and by pegging the authority to tax power paves the road for undoing the law under a filibuster-proof budget reconciliation process. Still upholding the Act will have a positive impact on millions of people right now and Roberts, in my judgment, fended off an immediate constitutional "crisis" - which seems like a good day's work for a conservative. The jiu jitsu is clear but those are fights for another day.

[Steve Shiffrin]

Thanks Patrick.
I have to edit the stolen valor case before getting to reading the
Affordable Health Care case, but I agree that Kennedys position
is astonishing. I wonder if the arrogance of the position helped
drive Roberts to uphold the act.
Steve

[Patrick S. O'Donnell]

From SCOTUSblog: In opening his statement in dissent, Kennedy says: "In our view, the entire Act before us is invalid in its entirety." Unbelievable. And, for what it's worth Steve, I think your comment is completely on target.